Clapp, Francis and Stanton. The opinion of the court was delivered by Clapp, S.j.a.d.
The judgment of the Superior Court, Chancery Division, is affirmed for the reasons expressed in the opinion of Judge Grimshaw reported in 40 N.J. Super. 495 (Ch. Div. 1956), see further 25 N.J. Super. 466 (Ch. Div. 1953), and for the additional reasons herein stated.
The first question here, one that was not presented below, is whether the conveyance proposed to be made by the defendant Allison Land Company to the defendant Allan Kriegel meets the condition stated in paragraph 2 of the decree of May 26, 1944 (see Judge Grimshaw's earlier opinion, 25 N.J. Super. , at page 470).
The decree was entered upon a petition of the surviving trustee appointed by the will of William O. Allison. As stated in the petition, the trustee was concerned over the fact that the will apparently gave him no power to dispose of real estate standing in the name of the Allison Land Company, which held title to all land the testator had purchased in this state (including the land to be conveyed to Kriegel). The petition continues:
"Under the law there seems to be no question as to the power of the trustees and your petitioner as surviving trustee to manage and dispose of personal property in any way necessary or convenient to efficiently carry out the terms of the trust, but the question arises as to the validity of any title to real estate standing in the name of the trustees where it becomes necessary to dispose of such real estate and to transfer legal title in order to carry out the terms
of the trust. Your petitioner further shows that notwithstanding the omission of powers delegated to the trustees in the Last Will and Testament of William O. Allison, deceased, it is necessary for the proper and efficient management of the trust that it be declared by this Court that the surviving trustee has full power and authority to convey and dispose of personal property and real estate wherever it may become necessary for the best interests and the efficient management of the trust."
Upon that petition, the court entered a decree, providing in paragraph 2:
"That the petitioner as surviving trustee under the Last Will and Testament of William O. Allison has the right and authority to transfer and convey lands of Allison Land Company and lands in the name of the estate of William O. Allison or in the trustees or trustee thereof if found essential to carry out the terms of the trust * * *." (Italics added)
Paragraph 3 of the decree (quoted by Judge Grimshaw, 25 N.J. Super. , at page 470) declared, further, that the trustees or trustee are empowered to sell and dispose of lands, including not only those "in the name of Allison Land Company * * * the estate of William O. Allison or trustees or trustee," but also those in the name of William O. Allison. In contrast, it will be observed, the real estate in Allison's name (consisting, perhaps, as indicated in the petition, of a "small number of tracts of land" outside the State) is not dealt with by paragraph 2 of the decree. In any event, it would seem that the italicized clause in paragraph 2 of the decree modifies the general power of sale provided in paragraph 3 with respect to the realty of the Allison Land Company.
The theory underlying the clause we have italicized appears to be this: since no express power to dispose of the company's realty was given by the will, the power cannot arise by implication, unless the disposition is necessary for the effectuation of the trust. The leading case is Chandler v. Thompson , 62 N.J. Eq. 723 (E. & A. 1901). See further, for example, Girard Trust Co. v. Cheeseman , 93 N.J. Eq. 266, 268 (Ch. 1921); Palisades Trust & Guaranty Co. v. Probst , 128 N.J. Eq. 332, 335 (Ch. 1940), dealing with a trust created by the testator William O. Allison during
his lifetime, and involving not only counsel who submitted the foregoing decree, but the vice-chancellor who signed it. Whether or not the decree be sound in this ...